Council considers drilling ordinance— Ban would be first in Ohio

Yellow Springs, though far from the epicenter of natural gas fracking in Ohio, could nevertheless become the first town in the state to ban all oil and gas drilling and waste wells within its municipal limits through passage of what is described as rights-based legislation.

Organizers with the local group Gas and Oil Drilling Awareness and Education, or GODAE, will propose the pioneering legislation at Village Council’s meeting on Monday, Aug. 6. The proposed ordinance would ban the siting of oil and gas extraction wells or the placement of injection wells within the Village on the claim that such wells would violate the civil rights of local residents and threaten their health and safety.

“If [the Village] doesn’t have this, and drilling does occur, the cost and the loss of our water supply would be a disaster,” said Vickie Hennessy of GODAE.

However, such a local ordinance may not be enforceable and could face a court challenge since the local legislation would be preempted by state law, according to Village Solicitor John Chambers.

“If the Village tried to enforce it, they could be taken to court by anyone who wants to drill,” Chambers said last month.

Yellow Springs would be the first town in Ohio to pass a rights-based ordinance banning drilling, and would join 12 other communities in Pennsylvania and New York in approving such legislation, according to Eric Belcastro of Community Environmental Legal Defense Fund, a Pennsylvania-based public interest law firm that helped GODAE draft the ordinance. None of the legislation has yet been enforced, nor has it been challenged in court, Belcastro said.

Until recently, Ohio municipalities had the right to control where — and whether — oil and gas wells could be drilled in their communities through zoning measures and outright bans. But with the passing of Ohio House Bill 278 in 2004, the Ohio Department of Natural Resources’ Division of Oil and Gas Resources Management became the sole authority over oil and gas wells, and municipalities and townships can do little to keep out drilling.

Hennessy said this Ohio law prioritizes corporate rights over citizens’ rights, and should be challenged.

Though the chances of natural gas fracking in Yellow Springs are admittedly low, Hennessy said, Yellow Springs could inspire other Ohio communities faced with the prospect of fracking to adopt similar legislation.

“We could set an example and I think that would be important,” Hennessy said. “If someone doesn’t make the first step, it will go on.”

Hennessy said she hopes that Miami Township, for one, would follow suit with a similar ban. Earlier this year a Michigan oil company was permitted by ODNR to drill a conventional oil well on a leased Miami Township farm, though no drilling has occurred to date.

In a letter to Council, GODAE asserts that hydraulic fracturing, or fracking, and injection wells are associated with spills of toxic chemicals, blowouts, leaking wells, contaminated drinking water, earthquakes and more, and have negatively impacted the environment and people’s health. ODNR officials, however, contend that oil and gas drilling is safe.

“For the most part there are no problems as long as [the wells] are constructed properly,” said Mike McCormick, head of ODNR’s permitting division, in an interview in January. The protection of fresh water is the number one priority of the division, the new setback provision requiring a well to be at least 50 feet from a body of water is adequate and leaks are rare, he added.

A bigger worry is that southwest Ohio might be targeted for the siting of injection wells, Hennessy said. Natural gas fracking is mostly taking place in eastern Ohio, where the gas-rich Marsellus and Utica shale reservoirs are located. But southwest Ohio has geologic formations that are attractive for the placement of Class II injection wells, in which fracking wastewater is injected into reservoirs deep underground.

“The chances of actually having fracking here is low, but injection wells are another story,” Hennessy said.

Injection wells caused a series of earthquakes in the Youngstown area last year, according to an ODNR report. And Julie Weathrington-Rice, a soil scientist who spoke at a GODAE forum last month, said that she has seen surface spills at injection well sites.

“I know they fail because I have cleaned up messes from them,” said Weatherington-Rice, who works for environmental consultant Bennett & Williams. She said she believes that fracking waste, which Ohio is increasingly taking from states like Pennsylvania, could be recycled instead of injected underground.

If the local legislation is passed, the Village will have to decide how it will enforce the new ordinance, according to Heidi Hetzel-Evans, an ODNR spokesperson. When a town in northeast Ohio tried to keep oil and gas drilling out of its community with local legislation, ODNR granted a drilling permit nonetheless and eventually the well was drilled.

But GODAE’s efforts were given a boost last week when a similar Pennsylvania law taking away zoning control over oil and gas drilling from local communities was struck down by an appellate court after seven municipalities sued. Earlier this year the New York Supreme Court ruled that local governments are empowered to regulate fracking under their zoning and land use authority despite a state law preempting local control.